News & Commentary

April 28, 2019

Marissa Marandola

Marissa Marandola is a student at Harvard Law School.

On Thursday, Andrew Lelling, the U.S. Attorney for the District of Massachusetts, charged a Massachusetts district court judge and a former court officer with three federal obstruction offenses.  Judge Shelley Richmond Joseph and Wesley McGregor are accused of helping a defendant in their courtroom, an undocumented immigrant, leave through the backdoor of the courthouse while an ICE officer waited at the front exit to arrest him on a federal detainer in April 2018.  Joseph and McGregor pled not guilty to all charges and were released, but the Massachusetts Supreme Judicial Court suspended Joseph without pay, writing that its order “is based solely on the fact that a sitting judge has been indicted for alleged misconduct in the performance of her judicial duties. It in no way reflects any opinion on the merits of the pending criminal case.”  In a U.S. Department of Justice statement, Lelling said that the case is solely “about the rule of law” and is unrelated to any criticism of the state’s trial courts or to ongoing debates about federal immigration policy enforcement.  But Massachusetts Attorney General Maura Healey derided the indictment as a “misuse of prosecutorial resources” and “a radical and politically-motivated attack on our state and the independence of our courts,” while Carol Ross, the executive director of the ACLU of Massachusetts, characterized the decision to prosecute as “an assault on justice in Massachusetts courts.”

The AFL-CIO released its annual Death on the Job report this week.  It found that workplace deaths totaled 5,147 in 2017, a slight decrease from 5,190 in 2016, echoing the Bureau of Labor Statistics’ numbers published in December.  According to the report, despite the overall decrease, fatalities increased in the mining, transportation, health care, and social assistance industries.  It also notes that under the Trump Administration, the number of workplace safety inspectors at OSHA has reached a 48-year low of 752, and the number of willful violation citations issued under the OSH Act dropped to 341 in 2017 from 542 at the end of the Obama Administration.  AFL-CIO President Richard Trumka called on lawmakers and executive officials to “stop playing politics and take action to prevent these tragedies.”

In a bench order issued on Thursday, U.S. District Judge Tanya Chutkan gave the EEOC until September 30 to collect expanded pay data disaggregated by race, ethnicity, and gender.  Earlier this month, Judge Chutkan overturned the Trump Administration’s stay of an Obama-era rule meant to increase pay transparency that required businesses to report employee salary data by race, gender, and title to the EEOC.  The Administration, she determined, had not properly revoked the regulation and had failed to supply a non-arbitrary reason for the shift in policy.  Her most recent decision gives the agency three additional months from the original deadline of May 31 to collect two years’ worth of data, reflecting the reporting that would have occurred if the Administration had not stayed data collection scheduled under the original rule to begin in March 2018.  Robin Thurston, senior counsel for Democracy Forward and a plaintiff in the litigation, said that the order was “a major victory for equal pay.”

Senator Sheldon Whitehouse (D-RI) writes for Slate that the Supreme Court’s decision this week in Lamps Plus, Inc. v. Varela represents yet another pro-corporate ruling by conservative Justices with sweeping anti-worker implications.  The Court held in Lamps Plus that the common law rule of contra proferentem does not apply to the interpretation of ambiguous arbitration agreements, at least when the ambiguity concerns the availability of class arbitration.  For Whitehouse, Lamps Plus is evidence of the Roberts Court’s “established pattern of bias toward the corporate elite,” which in this case “comes at the expense of American workers.”  With the American Constitution Society, Senator Whitehouse also released an issue brief this week cataloguing the decisions of the “Roberts Five” and concluding that in 73 cases decided 5–4, the Court’s conservative bloc has “delivered for corporate or conservative interests.”

Claire Cain Miller connects gender inequity to the rise of a 24/7 work culture in the New York Times.  Though working-age women are more educated than they have ever been, the most educated women face the steepest gender gaps in seniority and pay.  Miller suggests that this trend is because the nature of work and workplace culture have shifted toward a continuous demand model, making it nearly impossible for both partners in dual-career couples to maintain intensive jobs while raising a family.  Most often, the woman takes a less demanding position and the accompanying seniority and pay losses.  Backed by social science research, she contends that the benefits linked to working long, inflexible hours, especially in managerial roles and high-pressure professions like finance, law, and consulting, have so increased in recent decades that they have effectively canceled out the wage and seniority effects of women’s educational gains over the same time period.


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